The Future of Canada’s Medical Assistance in Dying (MAID ... · Supreme Court of Canada (SCC)...

The Future of Canada’s Medical Assistance in Dying (MAID) for the Mentally Ill and Physically Disabled

by

Kiran Madesha

A thesis submitted in conformity with the requirements for the degree of Master of Laws

Faculty of Law University of Toronto

© Copyright by Kiran Madesha 2017

ii

The Future of Canada’s Medical Assistance in Dying (MAID) for

the Mentally Ill and Physically Disabled

Kiran Madesha

Master of Laws

Faculty of Law University of Toronto

2017

Abstract

Canada’s Medical Assistance in Dying (MAID) law continues to be a dividing issue. While it has

been decided that only a few qualifying Canadians suffering from severe conditions may request

assistance in dying, barriers currently in place may inevitably be lifted as legal challenges are

brought against Bill C-14 for potential discrimination towards parties excluded from qualifying

under the bill’s eligibility criteria. There is a potential of using the Charter as a force to expand

assisted dying which may likely have negative implications on two of the most vulnerable groups

in society, those living with a mental illness or physical disability. Studies on controversial

practices emerging within the most liberal assisted dying regimes in Europe, Belgium and the

Netherlands, may inform Canadian lawmakers on issues to avoid when possibly enacting a

broader legalized practice in the near future.

iii

Table of Contents Table of Contents ............................................................................................................................ ii

Introduction .................................................................................................................................... iv

Chapter 1 Is Canada’s MAID Legislation Unfair? ..........................................................................1

Recognizing a Right to Die .........................................................................................................1

An Issue of Compliance with the Courts Ruling ........................................................................4

Challenges Against the Assisted-Dying Law ..............................................................................8

Chapter 2 Debates on Assisted Dying for Vulnerable Groups ......................................................16

Mentally Ill Patients ..................................................................................................................16

Physically Disabled Persons .....................................................................................................23

Chapter 3 Other Jurisdictions and Recommendations ...................................................................29

Lessons from the Netherlands and Belgium .............................................................................29

Recommendations for Regulating a Wider Access ...................................................................37

Final Remarks ................................................................................................................................42

iv

Introduction “I am forced to suffer with this disease without a choice, a disease which inherently limits my

opportunities for choice. I would like, if I am suffering intolerably, to be able to make a final

choice about how much suffering to endure.”

- Julia Lamb.1

Assisted dying is a delicate and difficult issue which touches the lives of many Canadians and

their families. It is closely related to end-of-life care and heavily debated around the world.

Following several other countries, including Belgium, Luxembourg, the Netherlands and several

parts of the United States, Montana, New Mexico, Oregon, Vermont and Washington, the

Supreme Court of Canada (SCC) decided to overturn its blanket ban on physician-assisted death.

The decision to legalize assisted dying took twenty-five years after the notion of euthanasia was

first brought to the Court’s attention in the early 1990s by Sue Rodriguez, a 42-year-old woman

suffering from the debilitating, terminal illness, amyotrophic lateral sclerosis (ALS). In the end,

Mrs. Rodriguez’s fight for a right to die was unsuccessful.

After two decades, changing precedents, and a large cultural shift towards physician assisted

death, the law was finally altered by the landmark Carter v Canada2 decision. Like many

jurisdictions before it, Canada faced the difficult decision of creating rules for assisted dying.

With deeply held beliefs on both sides of the debate, the government was tasked with crafting a

law that could provide competent Canadians the choice to end their own lives and to protect the

most vulnerable members of our society.

After a lengthy deliberation, the liberal government’s bill was finally given royal assent in June

2016. The law recognizes that competent adult Canadians have the right to a humane and

dignified death so long as they are suffering intolerably, either physically or mentally, from a

grievous and irremediable medical condition, in a state of irreversible decline, and at a point

1“Lamb v. Canada: the Death with Dignity case continues”, British Columbia Civil Liberties Association, online:

<https://bccla.org/our-work/blog/lamb/>. 2 Carter v Canada (Attorney General) (2015), SCC 5 [Carter].

v

where their natural death has become reasonably foreseeable. Yet, this freedom from unbearable

suffering is only a legally recognized right for some, not all.

Since the introduction of the new legislation, the government has been under immense pressure

to expand access. Their requirement that death must be ‘reasonably foreseeable’ was highly

criticized for excluding applications who were eligible for assisted death under the criteria set out

in the Carter decision. For this reason, many commentators argued the government’s legislation

was a violation of the Canadian Charter of Rights and Freedoms3 (Charter), specifically section

15, the provision on equality rights which prohibits discrimination based on race, nationality or

ethnic origin, religion, sex, age, mental or physical disability.4

Many, including the government’s joint committee and members of Parliament, were concerned

the federal government’s law on assisted dying was overly restrictive than what was initially

intended by the courts. The SCC held lawmakers were to balance conflicting rights from both

sides of the debate and that Parliament was responsible to enact a legislation on the issue so long

as it “was consistent with the constitutional parameters.”5 In attempting to strike a balance

between preserving a right to die while also protecting vulnerable groups, the law was stricter in

some areas than it was in others. Some of these barriers to access have been greatly contested as

unfair and unclear.

In the Carter judgement, it was well-understood that Justice Lynn Smith believed pain was an

inevitable aspect of a disease, illness or disability. However, suffering she argued, should be

optional for people in either physical or psychological pain. She recognized that each individual

should have the freedom to choose based on their subjective measure of tolerance and value of

life. Similarly, the SCC decided that individuals suffering from grievous and irremediable

medical conditions have the right to make decisions about their body and medical care as a part

of their autonomy. To leave individuals to suffer intolerably would ultimately impinge on their

rights within the Charter. However, the court also stressed that designing safeguards are

3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada

Act 1982 (UK), 1982, c 11 [Charter]. 4 Ibid, s 15.

5 Carter, supra note 3 at para 126.

vi

necessary in order to ensure protection of vulnerable individuals who may wish to commit

suicide in moments of weakness.6

The Supreme Court’s decision did not explicitly exclude the mentally ill or physically disabled.

Justice Smith held, after reviewing expert evidence on end-of-life practices from other

jurisdictions, persons with psychological illness and physical disabilities should still have the

option to request assisted death. She highlighted that such a prohibition puts strains on

individuals who have to travel abroad, sometimes with their families who may have to assist

them on their journey whilst a criminal liability looms over their heads. Not to mention, she

stressed that a heavier burden lies on individuals with physical disabilities who are unable to take

their own lives due to mobility restrictions. Based on the flexibility the court took on these issues

(in comparison to Parliament), many have argued assisted death should be an option granted

across all conditions for competent Canadians.

As the law currently stands, individuals living with a mental illness or physical disability who

wish to seek medical assistance in dying may be eligible if they meet the criteria set out in the

legislation. However, many argue that it is still unclear who is eligible under these requirements.

The government’s prerequisite that an individual must be in an ‘irreversible state of decline in

capabilities’ and ‘natural death must be reasonably foreseeable’ are vague restrictions. There is

no clarity on whether the law can be interpreted in a way that allows people to access assisted

death if they are solely suffering from a mental illness or a physical disability not currently in the

end-stages of their life. These conditions, as several commentators have argued, are not in the

original court decision and exclude a class of people who would have otherwise been eligible.

This first portion of this paper focuses specifically on whether the law is discriminatory towards

Canadians who are suffering only from a mental illness or have a physical disability, and

whether any exceptions are being made to current restrictions based on recent case law. The

equality argument is a critical factor in the initial judgement which recognizes that vulnerable

Canadians are entitled to make autonomous decisions to pursue assisted death. Yet, it was also

stated that Parliament had the power to develop regulatory standards to protect the vulnerable.

This paper will discuss whether this “stricter” criteria is consistent with the Carter decision and

6 Carter, supra note 3 at para 76.

vii

the Charter. This is a highly debated area, so the second portion of this paper will discuss debates

on whether or not to expand eligibility to mental illness and physical disability. Lastly, the

effects of open-ended access in permissive regimes will be examined, mostly focusing on

Belgium and the Netherlands since assisted dying has been a long-standing practice in these

countries and are the most liberal of all jurisdictions.

Restricting access does not mean that certain suffering is less important, it just suggests that

society does not consider certain forms of suffering as a good enough reason for someone to die.

Ultimately, if a section 15 discrimination argument is accepted by the court then expansion of the

eligibility criteria may soon follow. The government is already under a lot of pressure to expand

access so it may be inevitable that eligibility expands to individuals who may not be competent

to make such an irreversible medical decision. If a more tolerant criterion is where the country is

headed, then there should be discussion on what can be done in order to expand access to prevent

discrimination based on medical condition but also prevent unnecessary death for those with

treatable conditions. It would be logical then to discuss what controversies have arisen out of

more liberal regimes to determine what types of procedural safeguards are necessary to avoid

similar errors.

1

Chapter 1 Is Canada’s MAID Legislation Unfair?

Recognizing a Right to Die The Supreme Court of Canada ruled in favour of allowing MAID in a unanimous decision that

led to finding sections 241(b) and 14 of the Criminal Code7, which carried a hefty 14-year

imprisonment term, as unconstitutional for unjustifiably infringing section 7 of the Charter, the

provision protecting the right to life, liberty, and security of the person. However, the court did

not eliminate criminal liability for assisted suicide, instead it exempted liability for assisted death

for the appropriate medical professionals who adhere to requirements set out in legislation for

“physician-assisted death for a competent adult person who (1) clearly consents to the

termination of life and (2) has a grievous and irremediable medical condition (including illness,

disease or disability) that causes enduring suffering that is intolerable to the individual in the

circumstances of his or her condition.”8

This overturned the longstanding ruling in R v Rodriguez9, which was in favour of the

prohibition against physician assisted dying. Rodriguez argued that the ban violated her section

7, 12 and 15 rights of the Charter but a 5:4 decision dismissed her appeal. In the Carter decision,

this restriction was held to be overly restraining and could not be saved by a section 1 test of

whether such a restriction to a Charter right could be reasonably justified. Justice Smith held the

blanket ban infringed section 7 and 15. The section 15 argument however was not acknowledged

in the SCC decision, which ultimately gave Parliament more flexibility to overlook that

particular aspect of the Charter when making its law on medical assistance in dying.

Among the plaintiffs, Kathleen (Kay) Carter, suffered from degenerative spinal stenosis and was

in the later stages of her disease. She was battling an extremely painful condition for which she

ultimately travelled to Switzerland for before the end of her trial to commit suicide. The second

plaintiff, Gloria Taylor, was surprisingly in a very similar situation to Rodriguez. Both

7 Criminal Code, RSC 1985, c C-46. 8 Carter, supra note 3 at para 331. 9 R v Rodriguez (1993), 3 SCR 519 [Rodriguez].

2

Rodriguez and Taylor had suffered from ALS, a condition which leads to the inability to walk,

write, speak, swallow and breathe, and has a 2 to 5-year life expectancy.10 Both wanted to end

their lives on their own terms before the illness progressed and ended it for them. For Rodriguez

though, the legal recognition to be free from her suffering would only be realized 20 years later.

This decision was clearly long overdue, especially since Rodriguez did eventually get assisted

death by an unnamed physician, who to this day has never been identified, nor held criminally

liable for assisting in her death.

Justice Smith was able to review the constitutionality of the prohibition on assisted suicide not

only because the blanket ban was grossly disproportionate in protecting the vulnerable from

committing suicide at a moment of weakness by excluding all individuals, but also because of

the substantive changes to the law, particularly in relation to the section 1 analysis and social

changes that have happened over the past 20 years.11 She held that suffering could either be

physical or psychological. Her criteria from the trial decision stated that assisted dying is only

lawful when provided “by a medical practitioner in the context of a physician-patient

relationship, where the assistance is offered to a fully informed, non-ambivalent competent

patient who: (a) is free from coercion and undue influence, not clinically depressed and who

personally (not through a substitute decision maker) requests physician-assisted death; and (b)

has been diagnosed by a medical practitioner as having a serious illness, disease or disability

(including disability arising from traumatic injury); in a state of advanced weakening capacities

with no chance of improvement, has an illness that is without remedy as determined by reference

to treatment options acceptable to the person, and has an illness causing physical or

psychological suffering that is intolerable to that person and cannot be alleviated by any such

medical treatment acceptable to that person”.12

Upon reviewing various regimes, Justice Smith did discuss that there were possible risks

associated with physician-assisted dying. The areas of high risks she identifies are: assessing

10

ALS Association. “Facts You Should Know” (June 2016) online: <http://www.alsa.org/about-als/facts-you-should-know.html?referrer=https://www.google.ca/>. 11

Carter v Canada (Attorney General) 2012 BCSC 886 at para 908. 12

Ibid at para 1393.

3

competence, including cognitive impairment and depression; assessing voluntariness; assessing

informed consent; ambivalence; and harm to the elderly and people with disabilities. Yet, after

examining these areas, she concludes: “jurisdictions that permit physician-assisted dying have

created safeguards to ensure that only defined categories of patients are involved and reporting

requirements are followed. Research findings show differing levels of competence with the

safeguards and protocols in permissive jurisdictions and no evidence of inordinate impact on

vulnerable populations.”13

Although she specifically mentions depression as a primary risk factor in assisted suicide

requests, she does not explicitly state that individuals with mental illness should not qualify for

assisted dying. It is common for people with chronic conditions or terminal illness to become

clinically depressed and there are still no error-free capacity assessments available. She

highlights that suicide is not illegal in Canada, however, people who are physically disabled and

cannot commit an act of suicide themselves are disproportionately burdened under a law that

prevents them from accessing assisted death.14 Correspondingly, the Supreme Court judgement

did not deny access to mentally ill or disabled individuals.

Justice Smith acknowledged that “there are risks inherent in permitting physician-assisted death

and that the utmost care would be needed in designing and managing a system that would allow

it”15. However, in her conclusion she stated that “the risks inherent in permitting physician-

assisted death can be identified and very substantially minimized through a carefully designed

system imposing stringent limits that are scrupulously monitored and enforced.”16 Ultimately,

the structure of a law based on what the trial judge and the Supreme Court outline would not

preclude mentally ill or physically disabled individuals from accessing assistance in dying.

The SCC gave Parliament and provincial legislatures several months to create “an appropriate

remedy” to the criminal law. However, being such a difficult task, the timeline was extended by

13

Carter, supra note 10 at para 9. 14

Ibid at 283. 15

Ibid at para 854. 16

Ibid at para 883.

4

four months. This was done despite Quebec having already passed its end-of-life Bill 53, the Act

Respecting End-of-life Care.17 During this time, the court granted requests for assisted dying in

accordance to the criteria set out in the Supreme Court’s judgement for persons “who (1) clearly

consent to the termination of life; and (2) have a grievous and irremediable medical condition

(including illness, disease or disability) that causes suffering that is intolerable to the individual

in the circumstances of his or her condition.”18 So Canadians could qualify for assisted death so

long as they met this criteria. However, since no safeguards were set in place, the only protection

during this time was the fact that individuals had to seek judicial relief.19

An Issue of Compliance with the Courts Ruling When Parliament finally introduced an act amending the Criminal Code, there were mixed

reviews. Some leading associations, such as the Canadian Medical Association and Canadian

Nurses Association, were supportive of Parliament’s approach.20 While others argued that the

criteria set out differed from the one initially introduced in Carter. Bill C-14 did more than just

create procedural safeguards, it was more restrictive than the court’s decision.21 It added two

additional limitation clauses: (1) that an individual must be in an advanced state of irreversible

decline22 and (2) their natural death must be reasonably foreseeable23. This created an uproar as

many believed this meant only persons with terminal illness would qualify for MAID. However,

the government soon clarified that this did not mean assisted dying was reserved only for those

in a terminal state.

17

An Act Respecting End-of-Life Care, RSQ C 2014, c 2. 18


Library of Parliament, “Legislative Summary of Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)” in Legislative Summary, No 42-1-C14-E (21 April 2016) at para 1.3, online: <https://lop.parl.ca/Content/LOP/LegislativeSummaries/42/1/c14-e.pdf>. 20

Paul C Webster, “Canada debates medical assistance dying law” 387:10031 The Lancet 1893. 21

“Know Your Rights: Get the Facts: Bill C-14 And Assisted Dying Law In Canada”, Dying with Dignity Canada, online: <http://www.dyingwithdignity.ca/get_the_facts_assisted_dying_law_in_canada>. 22

Canada, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016, s 241.2(2)(b). 23

Ibid at s 241.2(2)(d).

5

Yet, the British Columbia Civil Liberties Association (BCCLA), who initiated the Carter

litigation, said that the legislation was inadequate because it “leaves out entire categories of

suffering Canadians who should have a right to choose a safe and dignified assisted death” and

means “people will be trapped in intolerable suffering”.24 Dying with Dignity Canada said the

natural death must be reasonably foreseeable criteria wording was vague and makes the law

unconstitutional.25 Along the same lines, Peter Hogg, Canada’s leading expert on Canadian

constitutional law stated: “In my opinion, the Bill is not consistent with the constitutional

parameters set out in the Carter reasons… those who satisfy the Carter criteria and do not have

an end-of-life condition will bring a constitutional challenge to the new legislation.”26 The

Supreme Court did not mandate Parliament to create legislation in relation to this issue, instead it

stated that if ‘Parliament and provincial legislatures chose to respond, they should enact

legislation consistent with the constitution set out in these reasons’.27

Jocelyn Downie, a Professor of Law and Medicine at Dalhousie University, argues that the law

must be amended because the criteria is inconsistent with both Carter and the Charter. Downie

says the SCC did not place an “incurable” restriction on illness, disease or disability, nor was

there any mention of needing the patient to be in an “advanced state of irreversible decline in

capability” or that “natural death be reasonably foreseeable”.28 She says this would have meant

that Kay Carter would not have qualified under the new eligibility criteria.29 Carter’s condition,

spinal stenosis, was a debilitating disease which caused her leg pain and affected her ability to

walk, however it did not reduce her life expectancy. It only affected her enjoyment of life.

24

Webster, supra note 19. 25

Supra note 20. 26

Peter Hogg, “Presentation to Standing Senate Committee on Legal and Constitutional Affairs Bill C-14 (medical assistance in dying)” (2016) online: <https://sencanada.ca/content/sen/committee/421/LCJC/Briefs/LCJC_June_6_2016_SN_Hogg_e.pdf>. 27


Jocelyn Downie, “Bouquets and brickbats from the proposed assisted dying legislation” (20 April 2016), Policy Options Public Forum, online: <http://policyoptions.irpp.org/magazines/april-2016/bouquets-and-brickbats-for-the-proposed-assisted-dying-legislation/>. 29

Ibid.

6

Further, Downie says the “reasonably foreseeable” requirement is too vague because everyone’s

death is to some extent foreseeable since we all eventually die sometime in the future.30

According to Downie, mental illness should be included in the criteria because the Supreme

Court did not expressly exclude it.

Several cases following Carter, before the enactment of Bill C-14, declared that terminal illness

was not a requirement.31 In the first of these, AB v Canada (Attorney General)32, assistance in

death was administered to an 81-year-old in an advanced stage of aggressive lymphoma who met

the Carter criteria. In this case, Justice Perell stated: “I extract five criteria from Carter-2015,

namely: (1) the person is a competent adult person; (2) the person has a grievous and

irremediable medical condition including an illness, disease or disability; (3) the person’s

condition is causing him or her to endure intolerable suffering; (4) his or her suffering cannot be

alleviated by any treatment available that he or she finds acceptable; and, (5) the person clearly

consents to the termination of life.”33 From this interpretation there was no requirement in Carter

that a medical condition needed be terminal or life threatening. Although the government has

since then provided some assurance that terminal illness is not a requirement, it was still clearly

very problematic for those at the time who believed Carter would not have been eligible under

Parliament’s new law.

On the other hand of the Charter argument, Dianne Pothier, who was also a professor of law at

Dalhousie University, said that Parliament, as a protector of Charter rights, is still responsible for

designing safeguards even though the court did not indicate what was needed to be done in order

to set an appropriate balance between meeting its constitutional obligations while also protecting

vulnerable Canadians from abuse.34 Around the same time, Thomas McMorrow, assistant

30

Ibid. 31

AB v Canada (Attorney General), 2016 ONSC 1912; IJ v Canada, 2016 ONSC 3380; and Canada v EF, 2016 ABCA 155. 32

AB v Canada (Attorney General), 2016 ONSC 1912.

33 Ibid at para 22. 34

Dianne Pothier, “The parameters of a Charter compliant response to Carter v. Canada (Attorney General), 2015 SCC5” (2016) Dal LJ at 3 online:

7

professor of Legal Studies at the University of Ontario Institute of Technology, asked: “why

would the Court be willing to twice extend Parliament’s deadline to tailor a new law, if Carter

imposes a legislative straightjacket?”35 The answer was the Court did not. Parliament was free to

legislate as it pleased, so long as the blanket ban was lifted.

According to Pothier, the SCC’s analysis in Carter concerned an absolute prohibition, rather than

a future regime with safeguards, so Parliament was left to decide how to draft the law on its own

and was not prohibited from declaring any further restrictions, including a terminal illness

criteria.36 She also said Justice Smith did in fact mention a requirement of “advanced weakening

capabilities”, however the SCC did not comment on this in its judgement and by not doing so it

cannot be said that it made any claim in favour or against it.37 Correspondingly, since the SCC

did not make any comment on the criteria of “natural death be reasonably foreseeable”, it did not

make a declaration against it either.38 She argued that the “reasonably foreseeable” requirement

provided necessary flexibility because in many situations, the timing of death is not entirely

predictable.39 Finally, in relation to Peter Hogg’s comment mentioned earlier, Pothier said he

was simply referring to the possibility of a challenge, not commenting on whether a stricter

criteria could pass a section 1 analysis.40

<https://static1.squarespace.com/static/56bb84cb01dbae77f988b71a/t/56f01526a3360cc820764be7/1458574630543/Pothier+-+charter+compliant+response+to+Carter.pdf>. 35

Thomas McMorrow, “Does Bill C-14 pass constitutional muster? A question must confront” (22 April 2016), Policy Options Public Forum, online: <http://policyoptions.irpp.org/2016/04/22/does-bill-c-14-pass-constitutional-muster-a-question-parliament-must-confront/>. 36

Pothier, supra note 33 at 6. 37

Dianne Pothier, “Submissions to the Standing Senate Committee on Legal and Constitutional Affairs Re consideration of Bill C-14” (2016) Dal LJ at 4 online: <https://static1.squarespace.com/static/56bb84cb01dbae77f988b71a/t/57320f0e40261d67c7169e73/1462898446596/Pothier+-+Senate+Committee+submissions+on+C-14.pdf>. 38

Ibid at 5. 39

Ibid at 6. 40

Ibid at 5.

8

The Government of Canada did attempt to provide some clarification to the reasonably

foreseeable issue on the Health Canada website as it is stated that people applying for MAID “do

not need to have a fatal or terminal condition to be eligible”.41 This clarification however, is not

written into Bill C-14. Additionally, the government removed the term “incurable” on their

guidelines, yet the term still appears in legislation. This could be problematic for those who are

trying to follow the law. Rather than adding or deleting terms from the government website

without notice, any clarification made should be publically announced and implemented into the

law to prevent misunderstanding.

Challenges Against the Assisted-Dying Law Health Canada’s website states “If you have a mental illness or a physical disability and wish to

seek medical assistance in dying, you may be eligible. Eligibility is assessed on an individual

basis, looking at all of the relevant circumstances. However, you must meet all the criteria to be

eligible for medical assistance in dying, which means: your natural death must be reasonably

foreseeable in a period of time that is not too distant; you must be mentally competent and

capable of making decisions immediately before medical assistance in dying is provided, the

physician or nurse practitioner must ask you to confirm your choice before administering the

service.”42 This section on eligibility for mentally ill or physically disabled persons does not

appear anywhere on the legislation, which may likely mean it was added later to support and

improve of the law, a measure the government expressed it would take.43 It further states there

are questions that have been left unaddressed in the law which require careful consideration,

including requests where mental illness is the sole underlying medical condition.44 It seems from

this statement then, only having a mental illness may not qualify an individual for assisted dying.

41

“End-of-life care: Medical Assistance in Dying” (26 April 2017), Government of Canada, online:<https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html>. 42

Ibid. 43

Canada, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016, Preamble. 44

Supra note 40.

9

In a paper with Justine Dembo, a Medical Director at Reconnect Trauma Centre in California,

Jocelyn Downie addresses several arguments made by Pothier (as discussed above) and tackles

uncertainties linked with mental illness within the legislation. They argue that individuals whose

sole underlying condition is a mental illness are not ineligible but that the government has been

providing misleading information to the public on which conditions would qualify.45 According

to Downie and Dembo, having a mental illness alone does not bar a person from requesting

access to assisted dying because of a recent decision by the Alberta Court of Appeal, in Canada

(Attorney General) v E.F.46, concerning a 58-year-old woman suffering from severe conversion

disorder, a neurological illness that causes psychological stress to convert to physical problems

which can affect one’s ability to walk, swallow, see or hear.47 Ultimately in this case, the

plaintiff did qualify for MAID solely through her mental illness.

However, in E.F., the court stressed the plaintiff was in desperate need of relief because she was

in agony for years, as they explained: “She suffers from involuntary muscle spasms that radiate

from her face through the sides and top of her head and into her shoulders, causing her severe

and constant pain and migraines. Her eyelid muscles have spasmed shut, rendering her

effectively blind. Her digestive system is ineffective and she goes without eating for up to two

days. She has significant trouble sleeping and, because of her digestive problems, she has lost

significant weight and muscle mass. She is non-ambulatory and needs to be carried or use a

wheelchair. Her quality of life is non-existent.”48 On numerous occasions it was emphasized that

although her condition was psychiatric, she was not depressed, instead she was living in dire

physical pain for several years. Thus, based on this decision, what can be gathered from the law

at this time is that an individual whose sole underlying condition is a mental illness is eligible for

MAID when there is a physical component to his or her suffering which must be lengthy over a

period of several years and unable to be mitigated by other treatments.

45

Jocelyn Downie & Justine Dembo, “Medical Assistance in Dying and Mental Illness under the New Canadian Law” (2016) Journal of Ethics in Mental Health at 1, online <http://www.camapcanada.ca/dd2016.pdf>. 46

Canada (Attorney General) v EF, 2016 ABCA 155 [E.F.].

47 Ibid. 48

Ibid at para 7.

10

Downie and Dembo went on to argue that a person who is suffering solely from a mental

condition can meet the eligibility criteria if they: (1) have decision-making capacity; (2) their

mental illness is incurable (meaning that they are in an advanced state of irreversible decline and

no treatment options are acceptable to the patient); and (3) their natural death can be reasonably

foreseeable.49 Each of these factors, they argue, can be fulfilled by a person whose sole

underlying condition is a mental illness. First, since psychiatric patients can be found to have

capacity to consent to risky treatment that could result in death, they can also be found to have

capacity to consent to assisted dying.50 An example they use is an anorexia nervosa patient who

can legally refuse life-sustaining treatment. Second, they argue mental illness can be incurable

since there have been reports of psychiatric patients unresponsive to treatments such as

medications, electroconvulsive therapy and other high quality treatments.51 Again, they reference

E.F., since the Alberta Court declared the plaintiff’s psychological disorder in this case an

irremediable condition based on her lengthy unresponsive treatment history. Furthermore, they

argue that many treatment options available currently for mental illnesses may not either be

available or acceptable to the patient. For instance, they claim that many medications intended to

treat psychotic illnesses have negative side effects, some of which are physical reactions such as

muscle spasms, immobility, dizziness, fainting and so forth.52 Finally, they argue that natural

death of psychiatric patients may be reasonably foreseeable. The example they use is again an

anorexia nervosa patient who is so malnourished that she is now experiencing “organ failure,

cognitive decline and multiple fractures as a result of premature osteoporosis”.53

While the authors do raise some valid points, they also make some concerning ones. For

instance, they argue that psychiatric patients who are not going through a sudden loss of

capabilities, like the hypothetical anorexia nervosa patient, we could look to conditions like Kay

Carter’s as clarification for what the government meant by “natural death” since her non-

49

Supra note 44 at 3. 50

Ibid. 51

Ibid at 4. 52

Ibid at 5. 53

Ibid.

11

terminal condition qualified as a reasonably foreseeable death based on the fact that she was an

elderly woman and frail, therefore “an individual whose sole underlying condition is mental

illness would meet the reasonably foreseeable criterion if she was old and frail”.54 Another

distressing claim they make is that research has shown people with mental illnesses die earlier

than the general population and therefore based on their short lifespan could qualify for assisted

dying.55 Finally, according to the authors, a decline in capabilities is a reality for persons with

mental illness because many individuals cease to take care of themselves, become isolated and in

many cases the risks of becoming homeless for such patients is heightened because access to

proper education or job opportunities diminishes as their condition worsens.56

On this point, other commentators have suggested that prejudice towards people with mental

illness are still deeply ingrained in our society and the mental healthcare system can only truly

address needs of these patients by finding them (1) a home (2) a job and (3) a friend.57 For this

reason, maybe we have no place in discussing medical assistance in dying for these patients

when a large portion of their suffering is entrenched in our society’s response to addressing their

needs. Nevertheless, the questionable remarks made by Downie and Dembo have not gone

overlooked. Lemmens et al note that in making their arguments on why the law should be

interpreted with a broader application, “they ignore the rules of statutory interpretation, in

particular because of their explicit rejection of Parliaments intent”.58

Although the government has attempted to provide some clarity on the issue of qualifying

conditions, present litigation also demonstrates that ambiguity continues to exist. For instance,

litigation is arising to challenge the terms in the current legislation that make eligibility

requirements unclear. In June 2016, the BCCLA and Julia Lamb, a woman suffering from spinal

54

Ibid at 6. 55

Ibid. 56

Ibid at 5. 57

Michael Bay, “The Devil is in the Details: Thoughts on Medical Aid in Dying for Persons with Mental Illness” (2017) 10 Journal of Ethics in Mental Health at 2. 58

Trudo Lemmens, Heesoo Kim & Elizabeth Kurz, “Canada’s Venture Into Medical Assistance in Dying: Why the New Federal Law is Charter Compliant and What it May Help to Avoid” (2017) [unpublished, McGill Journal of Law and Health] at 42, draft paper received by author.

12

muscular atrophy, a neurodegenerative disease, filed to challenge Bill C-14 on its requirement

that only those whose natural deaths are “reasonably foreseeable” are able to access assisted

dying.59 Lamb is worried that if her conditions worsens, which it could at any time, she would be

trapped and lose the ability to breathe on her own, move her hands and speak.60 She is afraid of

losing all of her independence and being stuck in a state of mental and physical suffering that

could last months, years or decades.61 The possibility of having this future causes her immense

distress, especially because she may be in a state where she is suffering both physically and

mentally, but the new law will require her to stay alive because her death is not “reasonably

foreseeable”. She says that she would like to “make a final choice about how much suffering to

endure”.62 Furthermore, in May 2017, the BCCLA added a new plaintiff to the case, Robyn

Moro. Moro is a 68-year-old woman suffering from Parkinson’s disease and says that she does

not want to endure progressive suffering and wishes the law would support her choice by

allowing her to die peacefully with her family by her side.63 According to the BCCLA, Morro’s

“days are spent in severe pain... her body shakes constantly with tremors… she has chronic

nausea and vomiting, muscle freezing, and exhaustion.”64 BCCLA say the current law violates

the Charter because it discriminates against fast moving conditions such as cancer to slow

moving conditions which cause individuals to suffer over a long period of time before their death

is “reasonably foreseeable”.65

59

“Get the Facts: Lamb v. Canada”, Dying with Dignity Canada, online: <http://www.dyingwithdignity.ca/lamb_v_canada>. 60

Ibid. 61

Ibid. 62

Ibid. 63

Supra note 1. 64

“ASSISTED DYING: BCCLA to add new plaintiff to legal challenge for right to die with dignity” (23 May 2017), British Columbia Civil Liberties Association, online: <https://bccla.org/news/2017/05/assisted-dying-bccla-add-new-plaintiff-legal-challenge-right-die-dignity/>. 65

Ruth von Fuchs, “MAID and Mental Illness: Critical Thoughts, Constructive Thoughts” (2017) 10 Journal of Ethics in Mental Health at 5.

13

Canada’s assisted dying law is clearly still facing challenges. These challenges have deepened as

they have now reached court-level. The Lamb lawsuit is arguing on the same Charter grounds

that were brought to the Court’s attention in Rodriguez and Carter, on both section 7 and 15.

Parliament cannot continue to ignore the importance of medical assistance in dying on section 15

grounds. Like the Special Joint Committee on Physician-Assisted Dying has stated, the difficulty

surrounding many of these issues, should not be used as justification to discriminate against such

individuals by denying them access to MAID.66

Chief Justice Lamer, the only judge in Rodriguez to consider the section 15 claim, argued that

preventing the physically disabled from ending their lives was discriminatory and could not be

justifiable under section 1.67 Justice Smith was in favour of preventing such a discrimination

against persons who are unable to physically take their own lives. She listed examples of

illnesses, such as ALS, Huntington’s disease, locked-in syndrome and severe inoperable spinal

stenosis, where a restriction on assisted dying could prevent such individuals from choosing to

die peacefully, and instead causing a them to die a painful death or to prematurely end their lives

in a possibly violent manner before their conditions worsen.68

Depending on the outcome Lamb, this lawsuit against the government of Canada may not be the

end of this conflict as other people with disabilities may one day come forward to fight for a

choice to die peacefully. On this point, Lemmens et al argue that while the governments

vagueness on such issues opens the door to a constitutional challenge, “public interest litigation

could be launched by the many health advocacy and disability rights organizations that are

expressly concerned about the implications of an open-ended MAID regime. One should hope

that human rights commissions and organizations would also be interested in investigating the

66

Parliament, Special Joint Committee on Physician-Assisted Dying, Medical Assistance in Dying: A Patient-Centered Approach (February 2016) at 14, online: <https://www.parl.ca/DocumentViewer/en/42-1/PDAM/report-1/page-5>. 67


Ibid at para 1041.

14

implications of an all-too-open MAID regime that exposes the most vulnerable of our society to

the risk of premature death and would take up the challenge of litigation on their behalf.”69

Ultimately, the SCC did state that “Parliament must be given the opportunity to craft an

appropriate remedy… [because] complex regulatory regimes are better created by Parliament

than by the courts”.70 However, Parliament is not required to apply Supreme Court judgments

identically into the legislation.

Yet, commentators like the President of Right to Die Society of Canada, Ruth von Fuchs, argues

that Parliamentarians who defend Bill C-14 say that the Courts make judgements but Parliament

has the end say on what the law is. However, she argues, Justice Smith went through volumes of

research and testimony before making her decision, it is doubtful that Ministers writing the bill

were as well informed by such quantity and quality of information.71 Therefore, Parliament

should enact law that does not conflict with the Charter, to do otherwise would undermine the

value of those rights and it would be inevitable that other plaintiffs affected by such a law will

come forward to challenge it.

As it has been discussed, an argument based on section 15 could claim that persons excluded

from MAID have equal say in whether they choose this form of medical treatment versus

another, however an opposing argument based on that same equal treatment right could be

argued in favour of a stricter law that provides equal protection to the vulnerable. Such a dispute

in the courtroom is not far from reality. However, as for whether the current law is Carter and

Charter compliant, it may not necessarily be Charter compliant since the question of whether the

law is proportionate based on a section 15 equality right is still largely undetermined.

Even though Charter rights are not absolute, it is insured that when they are infringed, it is done

so in the least intrusive manner, as required by the section 1 proportionality test. Some

restrictions should be made in order to protect vulnerable people, however as we know from

69



Ruth von Fuchs, supra note 64 at 5.

15

Carter these should be proportional to the objective. The Charter has been used to make some

enormous changes in the law in the past so it cannot be said with absolute certainty that a section

15 argument in favour of broader access to MAID will never come into existence. The potential

lack of equality has not gone unnoticed by many, including medical legal academics, right to die

associations and especially by those who feel that their right not to suffer unbearably has been

unfairly taken away from them. As, Ruth von Fuchs argues, “some people have just been dealt

with a very bad hand… they did not join the game voluntarily – indeed none of us did – they

should not be punished for their misfortune. And continued life, rather than a death, is what

constitutes punishment in their case… Diagnosis should not be grounds for discrimination”.72

72

Ibid.

16

Chapter 2 Debates on Assisted Dying for Vulnerable Groups

Mentally Ill Patients Many debates on whether mentally ill or physically disabled persons should be eligible were

considered in the Carter decision and in academic commentary. Mental illnesses are non-

terminal, so there are possibilities of improvement, even for conditions that cause long-term

suffering to old age. However, many argue that just because it is not terminal does not mean it is

remediable and it is unreasonable to require individuals to continue living out years in

unbearable pain while they wait for a possible solution, which may never come. A major concern

for those against extending eligibility is about consent. Some believe that mentally ill patients are

unable to provide valid consent because their condition impairs their decision-making ability. It

is true that there are currently many problems with capacity assessments, yet in the Carter

decision, it was held that obtaining capacity from a mentally ill patient highly depends on the

nature of their circumstances and therefore should be decided on a case-by-case situation.

In line with that assertion, psychiatrist and Clinical Professor, Dr. Smith, argued in Carter that all

cases should be determined based on the level of impact of impairment to make decisions and

that physicians can use current tests to make such assessments.73 He goes on to say that “most

people with depression will not be cognitively impaired… it is only when depression is severe

that concerns will arise in connection with a patient’s competence”.74

However, competence requires an individual to appreciate his or her situation and the

consequences of that decision, which many commentators suggest is not possible with persons

who are mentally ill, especially depressed patients because their feelings of hopelessness

completely diminish prospects of improvement in their subjective mind. For this reason,

commentators suggest that special attention should be paid to the individual’s ability to perceive

the future possibilities of improvement.

73


Ibid at para 787.

17

Either possibilities are not always explicit, or some individuals may not be fully aware what the

possibilities for improvement are or that they can eventually be achieved. Dr. Linda Ganzini,

geriatric psychiatrist and Professor of psychiatry and medicine, says it is important to understand

that people with depressive disorders can make choices that are inconsistent with their

personality and values.75 In her opinion, it is best to give such patients a trial of depressive

treatment rather than lethal injection, even if they have capacity.76

One psychologist in the Netherlands, where practice has been legal for quite some time now,

says that doctors still struggle with determining whether requests by such patients for assisted

dying are in fact very well considered.77 It is troubling to hear this from a psychologist who is

practicing in a regime where assisted death for persons with mental illness has been lawfully

permitted well over a decade now.

When people are suicidal due to their depression, it may be difficult for them to pinpoint why

they wish to end their lives. Just as hopelessness is a reason, often times a person’s self-worth

and lack of positivity in their lives can also be major factors in their decision to end life.

Consequently, when mental illnesses are added to eligibility for assisted death, it reinforces a

lack of hope in improvement.78 Feelings of hopelessness complicate competence assessments.

When an individual has such strong negative emotions, it is difficult to resist becoming

overwhelmed by the stress which ultimately disturbs one’s ability to make a sound judgement.

However, this does not negate the real pain and suffering mentally ill patients endure. There have

also been many accounts where scholars have written on physical effects of psychological

illnesses as well. For instance, it has been asserted that depression can prevent a person from

moving and getting up to start their day because it requires a lot more effort an energy for a

75


Ibid. 77


Thomas Blikshavn, Tonje Lossius Husum & Morten Magelssen, “Four Reasons Why Assisted Dying Should Not Be Offered for Depression” (2016) Journal of Bioethical Inquiry 151 at 154.

18

person experiencing severe depression than it would any normal non-depressed individual.79

Though, these are the kinds of physical results of certain mental illnesses that may be worked on

over time and overcome, either through medication or with the help of a therapist.

On the contrary, some scholars have argued that current treatment options available for mental

illnesses may not be a solution for some depressed patients. Udo Schuklenk & Suzanne van de

Vathorst’s paper discusses treatment resistant depression (TRD) as a severe and incurable

condition. In their article, they state: “limiting access to assisted dying to people with incurable

physical illnesses unjustly discriminates against competent people who struggle with psychiatric

illnesses.”80 According to their findings, approximately 20-30% of people with depression suffer

from an untreatable variety.81 While others have argued this number is between 12-20%.82 They

claim that many of these patients have tried numerous kinds of treatments, such as

antidepressants, psychotherapy, and possibly even electroconvulsive therapy, but these

unsuccessful attempts have left them paralyzed in distress.83 Yet, differing reports have

suggested that TRD patients can sometimes have a high recovery rate, one study revealed this

number to be as high as 60.2%.84 Success rates vary and it may not be the case that patients with

this condition will never recover.85

Bioethicist, Professor Franklin Miller, urges against extending physician assisted suicide to those

with TRD. He asserts that such an extension would be incompatible with the professional

79

Udo Schuklenk & Suzanne van de Vathorst, “Treatment-resistant major depressive disorder and assisted dying” (2017) 41:8 Journal of Medical Ethics 577 at 579. 80

Ibid at 578. 81

Ibid. 82

David A Mrazek et al, "A Review of the Clinical, Economic and Societal Burden of Treatment-Resistant Depression: 1996-2013” (2014) 65:8 Psychiatric Services 977. 83


Trudo Lemmens, “The Conflict between Open-Ended Access to Physician-Assisted Dying and the Protection of the Vulnerable: Lessons from Belgium’s Euthanasia Regime for the Canadian Post-Carter Era.” In Catherine Regis, Lara Khoury & Robert Kouri, eds. Key Conflicts in Health Law (Cowsenville: Yvon Blais, 2016) 261- 317, at 298. 85

Ibid.

19

integrity of physicians and the morality of medicine.86 He says physician assisted dying should

be an absolute last resort, mostly for terminally ill patients who are close to death regardless of

medical intervention, because it completely goes against the goals of medicine to promote patient

health and wellbeing, including mental health.87 He acknowledges that many critics in favor of

assisted dying have argued that if a patient on life-support can deny this treatment and not be

judged based on their level of competence, even though they may well be depressed, then so

should other individuals not using mechanical ventilation to survive. However, he notes that it is

important to consider though how deeply offensive it would be to the dignity of the person who

is refusing care to then force them to remain on life support without control over their body.”88

He argues that allowing individuals with conditions like ALS to request assisted dying is much

different that allowing someone whose sole underlying condition is severe depression because

the ALS patients condition is in fact known to be incurable, whereas there is still no true way of

determining whether someone’s form of depression will never be curable.

Schuklenk and van de Vathorst wrote a response paper to address points made by Miller against

their claims. On Miller’s point of ALS as an acceptable terminal illness for assisted death, they

argue that the effects of ALS can in some cases last over a course of a few years, so in these

cases assisted death may cause them to die prematurely.89 For instance, in Gloria Taylor’s

situation, she was expected to be fully paralyzed within six months of her diagnosis in January

2010 but during the Carter trial in 2012 she was not.90 Furthermore, they argue, there is always

the possibility that a cure for a terminal illness may be found, in which case it would be unfair to

permit terminal illness as a qualifier for assisted death but then ask a depressed patient, who has

86

Franklin G Miller, “Treatment-resistant depression and physician-assisted death” (2017) 41:11 Journal of Medical Ethics 885. 87

Ibid. 88

Ibid at 886. 89

Udo Schuklenk & Suzanne van de Vathorst, “Physician-assisted death does not violate professional integrity” (2015) 41:11 Journal of Medical Ethics at 877. 90

Carter, supra note 10 at para 820.

20

undergone years of unsuccessful therapy, to wait until some form of treatment eventually

works.91

Another academic who criticized Schuklenk and van de Vathorst’s paper is Professor

Christopher Cowely, who does not believe that TRD qualifies as an untreatable condition like

other non-treatable debilitating diseases (such as motor neuron disease). He argues that distinct

from non-treatable diseases like cancer and motor neuron disease, depression affects the brain

and distorts an individual’s judgement about the world and themselves, and not all depression is

the same so we cannot predict the outcome of the disease based on previous cases, as you can

with non-treatable diseases. 92

What makes TRD different from other conditions that fit Canada’s current assisted dying criteria

is that there is no telling how long a person has left to live, nor is it easy to determine whether a

patient with TRD truly has capacity to consent. Expanding assisted dying to such patients may

have far-reaching implications and therefore it should not be as easily accessible for these

patients as it is for those with a more probable end. If criteria expanded without additional

safeguards then what may happen is, as some fear, psychological illnesses could be more

willingly treated with assisted suicide, instead of using it as a last resort.

On this note, Blikshavn et al believe if mental health therapists become more willing to offer

assisted dying as an option for patients, then as a result it could become a more socially

acceptable and potentially favorable option.93 Since the law specifies that patients do not have to

undergo treatments they do not want to then patients may be more willing to reject any

potentially effective treatments and instead request assistance dying to alleviate their depression,

anxiety or other psychological conditions.94 To prevent this from happening patients should be

required to seek several alternative options, which may go against the ‘preferred treatment

91


Christopher Cowley, “Commentary on ‘Treatment-resistant major depressive disorder and assisted dying’” (2017) 41:8 Journal of Medical Ethics 585. 93


Paul S Applebaum, “Should Mental Disorders Be a Basis for Physician-Assisted Death?” (2017) 68:4 Psychiatric Services 315 at 316.

21

capable of meeting the patient’s needs’ direction, as it may essentially be compelling patients to

try options that they would not otherwise have considered. However, this would truly emphasize

that assisted dying is a last resort rather than an easier or just more preferable option.

In relation to this point, John Maher says if eligibility is expanded, it would be due to the fact

that mental health treatment and services are underfunded and the Canadian government is

unwilling to provide the finances to improve quality and access of these services.95 Certain

therapies are dependent on a long-term trusting relationship between the patient and psychiatrist.

As a psychiatrist, he argues it is his role of prevent suicide and help people find hope and

meaning in their lives. Maher has seen too many “hopeless” cases improve, and asks “if not me,

then who keeps trying?”.96

Furthermore, a remaining concern in the context of allowing assisted dying for psychiatric

conditions is whether capacity for such patients can be properly assessed. Charland et al believe

that even though there has been a lot of clinical progress in this area, there is no reliable

scientific way to conduct capacity assessments on psychiatric patients.97 The current test, they

argue is “highly subjective and can often be highly variable, especially in difficult cases”.98 A

popular decision making tool at this time is the MacArthur Treatment Competence Assessment

Tool. The evaluation takes roughly 20-30 minutes per assessment, however it still in its early

stages. 99 A major issue with this form of assessment is, depending on the circumstances, an

individual may be feeling strong emotions, such as hopelessness, anger, fear or sadness, that

95

John Maher, “What Troubles me as a Psychiatrist about the Physician Assisted Suicide Debate in Canada” (2017) 10 Journal of Ethics in Mental Health at 1, online: <http://www.jemh.ca/issues/open/documents/JEMH%20vol%2010%20editorial.pdf>. 96

Ibid at 4. 97

Louis C Charland, Trudo Lemmens & Kyoko Wada, “Decision-Making Capacity to Consent to Medical Assistance in Dying for Persons with Mental Disorders” (2016) Journal of Mental Health at 3, online: <http://www.jemh.ca/issues/open/documents/JEMH_Open-Volume_Benchmark_Decision_Making_to_Consent_to_Medical_Assistance_in_Dying-May2016-rev.pdf>. 98

Ibid. 99

Ibid at 5.

22

distort their reasoning to make sound judgements.100 These emotions can play a large role in

their final decision. Furthermore, aside from emotions, passions and values are also very

important in one’s decision-making capacity. Passions, “essential to the human pursuit of the

meaning of life”, include the human “willingness to be” which can push someone to either

recover from a serious illness, or give up.101 While, values can often be tied to social and

cultural values. For instance, anorexia nervosa, a social problem, often arises in industrialized

cultures.102 Therefore, any reasoning test which does not include these concerns should not be

used as a model for high risk decisions. Without a proper method of assessment, expanding

eligibility to psychiatric patients will most likely expose many to abuse.

Similarly, Mona Gupta, Associate Professor of Psychiatry in Montreal, argues that there is much

more that goes into a psychiatric patients suffering than others. For instance, their wish to die

could be based on existential, social or financial influences, all of which are outside the scope of

medicine.103 Requesting assisted death based on mixed feelings and experiences, she argues, is

more of a distress call than it is an expression of a Charter right.104

On the other hand, Dr. Govert den Hartogh says even though many mentally ill patients who

attempt suicide are often grateful for being rescued, there are a small number of them who are

living in misery who should be allowed to request an assisted death, yet this is still a very

minimal number and so extra precautions should be taken in allowing these individuals to make

such a request when reasons to doubt their stableness and decision making capabilities exist.105

There may not be doubt in every case, but there will likely be in a majority of them. If requests

100

Ibid. 101

Ibid. 102

Ibid. 103

Mona Gupta, “A Response to “Assisted Death in Canada for Persons with Active Psychiatric Disorders” (2016) Journal of Ethics in Mental Health at 1, online: < http://www.jemh.ca/issues/open/documents/JEMH_Open-Volume_Commentary_Response_Assisted_Death_in_Canada-June2016.pdf>. 104

Ibid at 2. 105

Govert den Hartough, “Why extra caution is needed in the case of depressed patients” (2015) 41:8 Journal of Medical Ethics 588.

23

are to be taken then, they should be with extreme caution because there will only be a very small

amount of exceptional cases where individuals have been suffering intolerably for years without

relief from currently available treatments. Keeping in mind, that it will be very difficult to

determine that a patient cannot be helped.

Michael Bay, Founding Chair of the Consent and Capacity Board of Ontario, suggests if we are

to proceed with expanding eligibility then we should do so with “great care and trepidation”.106

Psychological pain and horror is real but we still have a long road ahead of us in finding a way to

create capacity assessments which address the effects of depression, as the “model we currently

use to determine individual decision-making is not reality-based”.107

Physically Disabled Persons As for the second group of vulnerable Canadians discussed in this paper, the Carter decision

dedicated a separate section in the judgement to discuss the issues related to expanding access to

this group, most of which included Catharine Frazee’s opinions. She strongly believed that

current scholarly writing on the issue of access to assisted dying for persons with disabilities was

not a true reflection of the reality of their existence because it overemphasized a link between

dignity and being actively in control of one’s body, as she stated: “Loss of control of bodily

fluids is repeatedly emphatically represented as a catastrophic assault of suffering and indignity,

such as to render life no longer worth living. Loss of mobility and diminished capacity for

independent self-care are consistently described as a stripping away of dignity. Despair and

surrender are uncritically accepted as the only possible response to a hopeless predicament – a

predicament invariably associated with social shame.”108

In her submission to the Special Joint Committee on Physician Assisted Dying, Frazee points out

that the UN Commission on Social Determinants of Health confirms that what makes people

106


Ibid at 5. 108

Carter, supra note 10 at para 850

24

vulnerable is “biases, norms and values within society”.109 More often than not, discussion of

disabilities in favour of assisted dying highlights the struggles of disabled persons and links these

to worthlessness. For this reason, she argues, a regime that allows disabled persons to access

assisted death must “go beyond individual choice to a broader contemplation of social impacts

and potential harm to disadvantaged groups”.110 People living with lifelong physical disabilities

tend to face daily unpleasant challenges, however the unpleasantness of these diminish over time

and they can find meaning in their lives, whether it is through work, community, friendships or

other pleasures, they do not live out their entire lives in a state of unending distress.111

Likewise, the Council of Canadians with Disabilities and Canadian Association for Community

Living stated that people with disabilities already have to deal with being stigmatized in society

for their conditions. On top of this, if we allow them to access assisted dying, we are putting

them at risk of internalizing that their disabled lives are not worth living, ultimately working

against them rather than benefitting them or improving their situation of living with a disability.

112

Carol Gill, Professor in the Department of Disability at the University of Illinois at Chicago,

believes that disabled individuals are socially coerced into this desire to commit suicide because

the support for living is inadequate.113 Their distress leading to request death differs from other

conditions because it is mainly related to societies outlook towards their incapacity. Gill says:

“People with disabilities, like everyone else, decide to die when life seems untenable. However,

disabilities do not render life untenable; rather it is society’s treatment of people with disabilities

that demoralizes them and spoils their quality of life. Through discriminatory practices, neglect

and social segregation and impoverishment, society exhausts the spirits of people with

109

Catherine Frazee, “Submission to the Special Joint Committee on Physician-Assisted Dying” (2016) at 7, online: <http://www.ourcommons.ca/Content/Committee/421/PDAM/Brief/BR8103887/br-external/2016-02-12_brief_Catherine_Frazee_e-e.pdf>. 110

Ibid. 111

Ibid at 6. 112

Carter v Canada (Attorney General), 2013 BCCA 435 at para 40. 113

Carol J Gill, “Depression in the Context of Disability and “The Right to Die”” (2004) 25:3 Theoretical Medicine and Bioethics 171 at 176.

25

disabilities and then, label[s] their depression “rational,” lobbies for mechanism to discard

them.”114 On this point of external pressure, other academics have argued that like the dependant

elderly patients who request assisted death due to pressure from their families who do not wish to

take care of them, disabled individuals may also feel like they are a burden on their loved ones

due to the time and effort required for their daily care. For this reason, critics Marilyn Golden

and Tyler Zoanni say assisted death for disabled individuals result out of a lack of choice, rather

than an availability of choice.115

Opposition on expanding criteria argue that if MAID was expanded to disabled persons, it would

harm them as a class because it would label their lives not worth living. To this, Danny Scoccia’s

counterargument is if prostitution was legalized, then all women would be objectified because it

would harm all women through its “message, symbolism or social meaning”. Scoccia says that

we should reject paternalistic objections to assisted death because we cannot deny all disabled

individuals the right not to suffer just because disability rights advocates argue that their choice

would neither be free nor in their best interest.116 According to Scoccia, if we respect decisions

made by a Jehovah’s witness who refuses a blood transfusion based on her religious belief that

transfusions are sinful, then we are respecting her autonomy by allowing her to make a decision

based on her beliefs and values, even if they may be mistake or misguided. 117 We allow one set

of individuals to make what they believe is a dignified choice based on a religious belief but we

force another group to live a life they believe is undignified.118

However, the problem that still remains is labeling disabled persons as “second-class” citizens. If

MAID is expanded to people recently afflicted by a disabling condition such as paralysis, then

even the smallest tasks that were once easy suddenly become difficult and seem impossible to

114

Ibid at 179. 115 Marilyn Golden & Tyler Zoanni, “Killing us softly: the dangers of legalized assisted suicide” (2010) 3:1 Disability and Health Journal 16 at 20. 116

Danny Scoccia, “Physician-Assisted Suicide, Disability and Paternalism” (2010) 36:3 Social Theory and Practice 479 at 481. 117

Ibid at 482. 118

Ibid at 483.

26

accomplish. These individuals would need a lot of time to adjust to their new condition. As their

body has overcome a drastic change, so will their mind and social life. Newly disabled persons

can feel frightened and frustrated, which may often delay their recovery. It takes time and effort,

along with social support to gradually heal and reconcile with this new existence. If MAID was

available to a person in a time of weakness, then it is more likely that they will opt for it rather

than seek help from medical professionals or social services that provide assistance and prepare

newly disabled persons on how to handle their traumatic experience.

An applicable case related to this issue is of 23-year old Daniel James, a rugby player in England

who traveled to Switzerland to commit suicide after a training accident left him paralyzed from

the chest down. He felt that his body had become a “prison” and was not prepared to live a

“second-class existence”.119 Since assisted suicide is illegal in England, family or friends who

assisted could have faced up to 14-years imprisonment.120 A year before traveling abroad to the

centre for assisted dying in Zurich, James attempted to kill himself several times.121 Had he

waited though, maybe he could have found new meaning to his life.

Nevertheless, in light of such arguments Justice Smith held that there was not enough evidence

persons with disabilities would be at a higher risk. She said: “I accept that persons with

disabilities face prejudice and stereotyping and that there is a risk of unconscious bias about

quality of life of a person with a disability. However, …I am not persuaded that the risks to

persons with disabilities are such that they cannot be avoided through practices of careful and

well-informed capacity assessments by qualified physicians who are alert to those risks.”122

Some people are physically incapable of taking their own lives so they are forced to hopelessly

live out the rest of their days until they die of natural causes. Justice Smith clearly recognized

that this was an inescapable problem for certain individuals.

119

Robert Booth, “He wasn’t prepared for a second-class life: why injured rugby star went to Switzerland to die”, The Guardian (18 October 2008), online: <https://www.theguardian.com/uk/2008/oct/18/11>. 120

Ibid. 121

Ibid. 122

Carter, supra note 10 at para 853.

27

For instance, Jean Brault, a 60-year-old Quebec man who was desperate to end his life but did

not meet regulations to qualify for assisted death, made the decision to starve himself. He did so

for nearly 2 months before his condition deteriorated so much that he eventually qualified for

assisted death in April 2016.123 At age 19, a blood clot in his brain left him paralyzed but he

lived the last 42 years of his life out despite his debilitating condition.124 He had some movement

and could speak, but lost his independence when he lost all ability to move and slowly began to

lose the ability to talk, he decided he wanted to die.125 He planned on going to Switzerland to

seek medical assistance in dying but was unable to get all the required medical documents so he

was hoping Canada’s new end-of-life law would be his way out, but unfortunately he had to take

matters into his own hands.126 His brother, Pierre Brault, felt both relief and despair, and said “I

think people who have a bad quality of life… and they decide to die, I think they should be

allowed… the law should be wider to accept these people.”127

Unlike able-bodied people, some disabled people are still not given that choice based on the

Government’s eligibility requirements. The criteria set out by the Government does not seem to

suggest that assisted death would be available to a person who has been born with a physical

disability, such as cerebral palsy, a permanent movement disorder that affects muscle tone and

motor skills. Nor would it be legally acceptable for the families of these individuals to assisted

them in their suicide abroad. Under Canada’s new assisted dying legislation, if a close relative

becomes paralyzed and still wishes to die after years of therapy, any family or friends who assist

in their suicide abroad may face criminal liability in Canada.

123

Kate McKenna, “Doctor-assisted death obtained by Sherbrooke man who starved himself to qualify”, CBC News (13 April 2016), online: <http://www.cbc.ca/news/canada/montreal/sherbrooke-man-hunger-strike-death-1.3529392>. 124

Ibid. 125

Ibid. 126

Amanda Jelowicki, “Doctors assist with Quebec man’s death after he starved himself for almost 2 months”, Global News (13 April 2016), online: <http://globalnews.ca/news/2637654/doctors-assist-with-quebec-mans-death-after-he-starved-himself-for-almost-2-months/>. 127

Ibid.

28

During the Carter trial, Lee Carter, Kay Carter’s daughter, and her husband, Hollis Johnson

described the journey to Switzerland to use the DIGNITAS assisted suicide service as a stressful

and difficult process because of the expenses and fact that they were both aware that they could

potentially be exposing themselves to prosecution in Canada. This is still the case today.

Assisting anyone who does not meet the current eligibility for MAID is legally prohibited.

According to the Criminal Code, liability does not apply to those who assist in MAID in

accordance with the exemption set out in section 241(2)128. It is inferred that liability for those

who are not eligible under the governments criteria still remains.

128 Criminal Code, RSC 1985, c C-46, s 241(2).

29

Chapter 3 Other Jurisdictions and Recommendations

Lessons from the Netherlands and Belgium Justice Smith’s ruling overturned the ban on assisted dying after reviewing several assisted dying

laws around the world, specifically within the United States and Europe. In her conclusion on

practices abroad, she stated that the effectiveness of safeguards varied, however the justifications

for such expansions were ultimately very convincing. They were largely accepted by the

Supreme Court in taking the final step to lift the legal ban. However, many critics argue that the

trial judge made an error in concluding that safeguards would minimize the risks that have

surfaced in other permissible jurisdictions. In particular, current practices carried out in the

Netherlands and Belgium are at the forefront of most controversy. In both jurisdictions, a patient

who is suffering intolerably with no hope of relief or improvement can be assisted in suicide.

Comparative studies on Canada and the United States have revealed that assisted dying in

Canada is already under a more liberal rule than current laws in the US.129 So for our

consideration, this section will exclusively focus on liberal European countries.

In the Netherlands, the Termination of Life on Request and Assisted Suicide (Review Procedures)

Act130 came into force in 2002 and Article 2 (d) established that patients are eligible for

euthanasia and assisted suicide long as there is no reasonable alternative. While both euthanasia

and assisted suicide are still offences under the Dutch Penal Code, exemptions have been created

for physicians who comply with requirements under the act. The acting physician complies with

due criteria so long as (a) the patients request is voluntary and carefully considered; (b) the

acting physician is satisfied that the suffering was unbearable, with no prospect of improvement;

(c) the patients has been informed of potential prospects; (d) both physician and patient are

satisfied that there are no reasonable alternatives; and (e) at least one other independent

129

Konstantin Tretyakov and Glen Cohen, “Medical Assistance in Dying and “Suicide Tourism” to Canada: Bill C-14 from a Comparative Perspective” (2016) Journal of Ethics in Mental Health at 1, online: <http://www.jemh.ca/issues/open/documents/JEMH_Open-Volume_Benchmark_Medical_Assistance_in_Dying_And_Suicide_Tourism_July2016.pdf>. 130

Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2002, available online: <https://www.eutanasia.ws/documentos/Leyes/Internacional/Holanda%20Ley%202002.pdf>.

30

physician has met the patient and provided his/her written opinion about requirements (a) – (d),

and the termination of life or assisted suicide was carried out with appropriate medical care and

attention. Additionally, there are several reporting requirements. A physician is obligated to

report the death to a medical examiner and indicate he or she has acted within the scope of the

criteria, in turn the examiner must determine the accuracy of the report and notify the regional

review committee.131 The review committees are comprised of physicians, legal experts and

ethicists, who must decide whether each reported instance is within the Dutch Act, subsequently

the committee’s decisions are published online for transparency and public accountability.132

The Dutch Supreme Court decided in Chabot133 that mental and physical suffering may justify

physician assisted dying, however it warned that physicians must be cautious when determining

the outcome of such cases.134 Later in 2003, the Supreme Court held in Brongersma135 that

physicians must be very selective and limiting in providing access to PAD to persons suffering

from both physical and mental disorders.136

Many commentators in Carter contended that any problems in the Dutch regulatory framework

were now resolved, however academics argued this was not the case. For instance, as Professor

Keown warned, Dutch criteria such as voluntariness and unbearable suffering are too broad and

open to subjective interpretation.137 In a study on how practice is regulated in the Netherlands,

Kim et al, raised some serious concerns. The authors reviewed psychiatric case summaries,

analyzed what physicians reported as reasons for patients being euthanized and shed light on

concerns about how physicians apply the Dutch criteria. They found that a majority of patients

requesting assistance in dying had depression. Specifically, in a review of 36 cases, 55% of

131



Supreme Court, NJ, 21 June 1994, Chabot (1994) No 655 (The Netherlands). 134


Supreme Court, NJ, 24 December 2002, Brongersma (2003) No 167 (The Netherlands). 136

Carter, supra note 10 at 469. 137

Ibid at para 501.

31

patients were suffering from a depressive disorder.138 Other prominent disorders included post-

traumatic stress disorder and anxiety.139 In other cases, patients suffered from social isolation or

loneliness and prolonged grief due to passing of a spouse or close relative.140 Majority of the

patients effected were women, with high rates of depression and personality disorders.141 The

study also noted that most patients who did have extensive history of treatments, also refused

some treatment because they were concerned of ‘adverse effects, risk of harm, and had doubts

about efficiency’.142 They also found that there were several instances where patients, who were

granted euthanasia or assisted suicide, at a later point refused (32% to be exact), and that in 27

cases less than half performing physicians were psychiatrists (at 41%), while majority were

general practitioners.143 They also discovered there were disagreements amongst physicians in

24% of cases, yet the assistance in dying for most proceeded anyway.144 In all 110 cases

reported to the Dutch regional euthanasia review committee, responsible to ensure rules on

euthanasia and assisted suicide are met with due criteria, only one case was found to have not

met legal requirements.

In another paper, entitled “Should assisted dying for psychiatric disorders be legalized in

Canada?”, Scott Kim and Trudo Lemmens warn that the government should pay closer attention

to the evidence from Belgium and the Netherlands when deliberating whether psychiatric

disorders should qualify for assisted dying in Canada. They argue that evidence suggests

eligibility for psychiatric disorders goes beyond severe depression, it extends to people with

schizophrenia, posttraumatic stress disorder, anorexia, autism, personality disorders and

138

Scott YH Kim, Raymond G De Vries and John R Peteet, “Euthanasia and Assisted Suicide of Patients With Psychiatric Disorders in the Netherlands 2011 to 2014” (2016) 73:4 The Journal of American Medical Association Psychiatry 362 at 364. 139

Ibid at 365. 140

Ibid. 141

Ibid at 367. 142

Ibid at 365. 143

Ibid. 144

Ibid.

32

prolonged grief.145 Furthermore, they advise against the recommendations made by the

Parliamentary Special Joint Committee on Physician-Assisted Dying because it does not require

patients to undertake treatments that are not acceptable to them, which could especially be

harmful to those with psychiatric conditions, as evidence suggests these patients can achieve

remission if given high quality treatment.146 What happens when this becomes the case, as they

specify is the current situation in the Dutch experience, is that patients with psychiatric disorders

who receive assisted dying do so without having tried all recommended treatments.147 One

study, they point out, conducted on Belgium and the Netherlands suggests that currently,

available treatment is not provided to a majority of mentally ill patients who qualify for assisted-

dying in these jurisdictions.148

Dr Boudewijn Chabot, the Dutch psychiatrist in the historic Dutch Supreme Court Ruling

mentioned above, assisted in the death of a healthy 50-year-old social worker, who he described

as a ‘down to earth person’ with no evidence of psychosis, no hysteria, no personality disorder

nor depression, but instead a competent woman.149 After the death of her two sons, she was

determined to die, with or without Dr. Chabot’s assistance. Along with other psychiatrists,

Chabot grew to believe her wish to die was genuine and well considered.150 He once fought for

the right to self-determination in assisted dying cases, but is now concerned with the direction

the practice has headed.151 What worries him the most, is the rate euthanasia is performed on

145

Scott Y.H. Kim & Trudo Lemmens, “Should assisted dying for psychiatric conditions be legalized in Canada?” (2016) 188:14 Canadian Medical Association Journal at 1. 146

Ibid. 147

Ibid at 2. 148

Emilie Olié, “The Controversial Issue of Euthanasia in Patients with Psychiatric Illness” (2016) 316:6 The Journal of the American Medical Association 656. 149

Tony Sheldon, Independent (29 June 1994), online: <http://www.independent.co.uk/life-style/the-doctor-who-prescribed-suicide-was-the-dutch-psychiatrist-dr-boudewijn-chabot-right-to-help-a-1425973.html>. 150

Ibid. 151

Boudewijn Chabot, “Worrisome Culture Shift in the Context of Self-Selected Death” (16 June 2017) NRC Handelsblad, online: <https://www.nrc.nl/nieuws/2017/06/16/de-euthanasiegeest-is-uit-de-fles-11123806-a1563406>; translated by Trudo Lemmens, online: <https://trudolemmens.wordpress.com/2017/06/19/the-euthanasia-genie-is-out-of-the-bottle-by-boudewijn-chabot-translation/>.

33

demented and psychiatric patients. He worries that with less funding for care of patients with

brain diseases, the number of cases could drastically rise. In the last 10 years, he says, the

number of physicians willing to perform euthanasia has increased and it has become apparent

that the review committee no longer assesses whether the requirement of “unbearable suffering

with no prospect of improvement” is satisfied since there is no point in arguing against a

qualified physician.152 According to Chabot, the euthanasia and assisted dying law became

wildly uncontrolled when eligibility requirements first created for requests made by physically ill

patients were then being applied to psychiatric cases without limitation, and the review

committee began concealing cases of incapacitated people being killed.153

During the same time the Netherlands legalized euthanasia and assisted suicide, Belgium also

legalized it for incurable patients with severe suffering. Like the Netherlands, euthanasia and

assisted suicide are criminally prohibited by the Dutch Criminal Code, however, the acting

physician is exempt from criminal liability, according to section 2(1) of The Belgian Act on

Euthanasia of May 28 2002154, so long as the patient is of age and legally competent at the

moment of making the request; the request is voluntary, well considered and repeated, free from

external pressure; the patient is in a medically futile situation which is constant and unbearable

physically or mentally, his/her suffering cannot be alleviated, and results from a serious

incurable disorder caused by illness or accident.155 The act further requires in any situation

where a physician finds himself/herself unable to establish that the patient is expected to die in

the near future, a second physician, either a psychologist or specialist in the disorder in question

must be consulted.156 In the context of euthanizing or assisting in suicide of a person with mental

illness, the law requires a more detailed consultation with a third physician.157

152

Ibid. 153

Ibid. 154

Act on Euthanasia of Mat 28, 2002. English translation provided by Dale Kidd and Herman Nys, available online: <http://www.ethical-perspectives.be/viewpic.php?TABLE=EP&ID=59>. 155

Ibid at s 3(1). 156

Ibid at s 3(3)(1). 157

Supra note 83 at 296.

34

There must also be a one month reflection period from the moment of the request to the actual

act of euthanasia or assisted suicide.158 Additionally, the patients request must be in writing, by

way of being drawn up, dated and signed by the patient.159 In any case the patient is unable to do

so by himself/herself, the document is drawn up by someone designated by the patient who must

not have any interest in the patient’s death.160 In several areas of the legislation, it states

physicians must report their findings. These reports are then directed to the Federal Control and

Evaluation Commission (FCEC), which is composed of sixteen members, eight of which are

doctors, four professors of law or practicing lawyers, and the remaining four are members from

the groups that have experience in dealing with incurably ill patients.161 If two thirds of members

vote that a case was not in line with legislation, it will then be forwarded to the public prosecutor

who will then decide whether there is cause to prosecute.

On average, there are at least 5 cases of euthanasia or assisted suicide reported per day, yet since

2002-2015 there has only been one case referral to the public prosecutor, with failure to

prosecute.162 Lemmens believes that the flexible nature of the criteria has meant that the FCEC

can easily find many controversial cases as acceptable under the law, beyond what was first

envisioned by the legislatures who created it.163 One controversial case, which received

international attention, was written about in the New Yorker by Rachel Aviv, entitled “The

Death Treatment”164, of a woman who struggled with depression after the death of her husband

but later improved following the birth of her grandchildren and relationship with her new

partner. She relapsed and during a time of isolation, while she felt estranged from her family, she

requested to be euthanized. Two psychiatrists qualified her depression as incurable. An uproar

158

Supra note 153 at s 3(3)(2). 159

Ibid at s 3(4). 160

Ibid. 161

Ibid at s 6(2). 162



Rachel Aviv, “The Death Treatment: When should people with non-terminal illness be helped to die?” The New Yorker (22 June 2015), online: <http://www.newyorker.com/magazine/2015/06/22/the-death-treatment>.

35

arose after the publication of this article and a group of 65 healthcare professionals protested to

change the law.165 This encouraged others to come forward and speak out about their own

stories. Sisters of 38-year old Tine Nys, told her story. Nys struggled with depression in her

teenage years and attempted suicide, however, her condition improved for more than 15 years

but she then relapsed and requested euthanasia from a psychiatrist, two months later she was

diagnosed with autism, a diagnosis she had never received earlier, but an easier condition for the

psychiatrist to claim that her condition was irremediable and thus in line with the legislative

requirements.166 Other controversial cases include two 48-year old deaf-mute brothers, and a

transgendered person with a “troubled life trajectory”.167 These cases raise sufficient concerns

about the flexibility of the Belgian law.

Furthermore, an alarming 2014 article in the British Medical Journal, which reviewed the first

100 patients to receive euthanasia and assisted death for psychological disorders (between

October 2007 – December 2011) revealed that only one psychiatrist was found to be the only

consulting psychiatrist for each of these first 100 cases.168 The qualifying conditions ranged

from post-traumatic stress disorders, anxiety, Asperger syndrome, schizophrenia, substance use,

obsessive compulsive disorder, prolonged grief and so forth.169 This could be an example of

what is known as “doctor shopping”, when one physician is unwilling to perform the euthanasia

or assisted suicide, patients can seek out other physicians known to be more lenient and

accepting, or contract an organization which will refer them to physicians who may be more

willing. For example, the Netherlands’ End-of-Life Clinic, Stichting Levensindekliniek, refers

patients to physicians whose own have declined. According to Dr. Chabot, in 2016, with 40

physicians working at the End-of-Life Clinic, 498 euthanasia procedures were performed which

equates to 12 procedures per doctor per month.170 He warns us that a culture has emerged

165


Ibid at 306. 167

Ibid at 309. 168

Ibid at 300. 169

Ibid. 170

Supra note 150.

36

amongst medical professionals where euthanasia is considered a “virtuous labour”.171 The

Belgian experience is quite similar. One study reported that close to 50% of cases had been

approved by a single psychiatrist.172 As mentioned earlier, even though there are second, and in

some cases, third consultations necessary, these are not considered binding.173

Critics of euthanasia and assisted dying assert that legalization of the practice will inevitably lead

to a ‘slippery slope’ effect, leading to a chain of significant negative effects resulting in

involuntary deaths. In the Carter decision, Justice Smith referred to two types: a practical

slippery slope and a logical slippery slope. The first refers to ‘the concern that even the most

carefully crafted laws will eventually be ignored’, while the latter refers to ‘an inevitable

expansion in areas not initially contemplated’.174 Evidence from the Netherlands has revealed

that out of every 5 people who are euthanized, 1 is without consent.175 In Belgium, that rate is 3

times higher.176 It is worrying that physicians are able to decide themselves when a patient’s life

should be shortened without their clear consent. Some argue such information is distorted

because patients may have at some point expressed their desire to die, while the counterargument

to this is that written consent is essential to avoid abuse.177 The United Nations has found that

practices of involuntary death is a violation of the Universal Declaration of Human Rights

because of risk to safety and integrity.178

Commentators have drawn attention to the fact that cases arising out of Belgium are much wider

than the first adopted legislative proposals and emphasize that it is worth observing that once

171

Ibid. 172


Ibid at 302. 174

Ibid at 287. 175

J Pereira, “Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls” (2011) 18:2 Current oncology e38 at e39.

(2011) 18:2 Current oncology e38 at e39. 177

Ibid. 178

Ibid at e43.

37

‘one form of active life-ending practice is supported, it can create momentum for other forms’.179

Debates in this area of law should discuss the reality of an eventual change in social and legal

approaches to end-of-life care in the future.180

Recommendations for Regulating Wider Access Based on evidence presented in this paper, greater caution is needed before allowing vulnerable

populations the right to access MAID. Problems that have arisen within these two jurisdictions

are clearly valuable in the Canadian context. They inform us what could become a reality if

Canada operates with wider criteria without taking appropriate precautions. However, there may

still be a way to address the needs and concerns of people who currently fall outside the

eligibility criteria in Canada, while also preventing harm. Preserving life in a category of people

to protect some still cannot be justified because preserving dignity may be of higher value than

preserving life.181 So rather than quickly dismissing a request that it does not fit into specific

requirements, there should be an attempt to meet any patient’s needs. Therefore, rather than

merely fighting against expansion, there should be extensive discussion on how to better regulate

the practice through improved safeguards and reviews.

Many academics, even those who hold strong views against extending access to vulnerable

groups, have made several recommendations on what could be done in this area of legislation if

change were to occur and how to avoid end-of-life practices that have led to unnecessary or

involuntary deaths. If there is an expansion in the criteria, then no single safeguard will be able

to prevent harm to vulnerable persons, but instead, a ‘complex architecture’ of assisted death will

be required, of which the ‘blueprint must go beyond a simple solution’.182

Ralphael Cohen-Almagor, Professor at the University of Hull, England, has extensively studied

end-of-life decision-making, including in Belgium and the Netherlands. He is in favor of

179


Ibid at 290. 181

Raphael Cohen-Almagor, “Physician-assisted Suicide – A qualified endorsement” (2011) 3:1 Amsterdam Law Forum 115 at 116. 182

Supra note 110 at 7.

38

physician assisted dying but is critical of what is happening in these jurisdictions. He notes

where major developments need to be made and suggests how to improve the laws on assisted

dying to prevent potential abuse of vulnerable patients. His ratification of assisted dying is

restricted to only competent adult patients (over the age of 18) who are mentally capable and

able to express their needs, thus excluding demented patients from his recommendations. Some

of his guidelines are as follows: (1) physicians should not suggest assisted dying to the patient,

only patients should initiate discussion; (2) it should be restricted to competent adult patients

with incurable and irreversible conditions, who voluntarily request over a period of time, without

family and social pressure; (3) if there are means to ease the patients pain, the patients request

should not be fulfilled, instead necessary treatment should be prescribed; (4) the patient must be

informed of the chances of recovery or possible growth of their suffering as their condition

progresses; (5) a second opinion, of a specialist, independent of the fist doctor, verifying

diagnosis and possibility of misdiagnosis, along with other medical options should be provided;

(6) to avoid collusion between physicians, it is advised that an small independent committee

determine the identity of the second physician; (7) before the act is performed, the patient should

meet with a doctor and psychiatrist to verify that the request is genuine without coercion or

undue influence by a third party; (8) the patient can rescind the request at any time and in any

manner; (9) the act should be performed only by a doctor in the presence two physicians, a

lawyer and possibly a member of public, to prevent cases going unreported; (10) the service must

be free from any financial incentive; (11) there must be extensive documentation in the patient’s

medical file of the entire process, including: diagnosis, prognosis, consulting physicians,

attempted treatments, reasons for request, written or video recorded request, conversations, offer

of rescindment, discussion with loved ones, and psychological report, which is all then passed on

to a coroner for examination of completion; (12) pharmacists should be required to report all

prescriptions of lethal medication, to ensure the reporting obligation is being fulfilled; (13)

physicians should not be coerced into taking requests; (14) local medical associations should

establish committees to investigate reports and ensure that no cases have gone unreported or

have not complied with legal guidelines; (15) physicians who fail to comply with the law should

39

be sanctioned by being charged and/or revoke license to practice by a disciplinary tribunal, with

the possibility of including fines and prison sentences.183

For an independent review committee, Lemmens et al suggest that the Ontario Consent and

Capacity Board should be given authority to have final say on diagnosis and treatment options

for persons whose sole underlying condition is mental illness.184 To avoid the problems that have

arisen out of the more permissive regimes, some have suggested a more feasible option would be

to use the existing structure of the provincial/territorial review boards, made up of a judge, and

members with relevant experience, where physicians present their assessments of the patients

requesting assisted dying to the boards who then determine whether the patient should be

referred for vulnerability counselling, intended to determine whether their needs can be met

through alternative means and whether other options have been exhausted.185 Accordingly, this

would avoid subjective decisions being made by physicians. Additionally, the board would also

be responsible for developing appropriate expertise and conducting inquiries into the motivations

for such request, identifying potential pressure from family members or elsewhere.186

Furthermore, Lemmens et al also stress that if psychological suffering is in fact included in

MAID in the future, then patients should be required to wait a sufficiently long time to fully

consider the outcome of their request and available treatments.187 It is worth mentioning that that

out of 48 cases where a request was approved for euthanasia or assisted dying in Belgium, 11

patients decided to either postpone or cancel.188 This demonstrates that the physicians were

wrong in their initial finding that the patients suffering was unbearable. As mentioned earlier,

patients are obligated under Belgian law to wait at least one month between the time of request

and time it may be carried out. The Provincial Territorial Advisory Group on Physician Assisted

183




Ibid. 187

Ibid at 301. 188

Ibid.

40

Dying 189 (PTAG) did not recommend that the Canadian government create such a reflection

period, yet as seen through the Belgian experience such a delay has proven to prevent

unnecessary death.190 Given the problems associated with competency assessments mentioned

earlier, it should be a requirement that the more difficult it is to assess competency in a patient,

the longer the obligatory wait period should be. If Canada wishes to avoid the current

difficulties in the Netherlands and Belgium, the proposals submitted by PTAG should not be

pursed.

Additionally, as it has already been stated, according to Carter, patients are not obligated to

undergo any treatments if they do not wish to. Yet, it often takes several repeated and varied

attempts at trying treatments and medications to see any improvements in psychological

conditions. Lemmens et al have argued that by not requiring patients to undergo potential

alternatives would be problematic in the context of a psychological condition because there is no

clear way to understand why a patient would refuse treatment, nor establish that it is an informed

choice of a mentally competent person.191

On the contrary, Michael Bay argues that it is important that no medication a patient finds worse

than the disease should be forced on them, even if it is noticeably effective. While he is unsure

whether patients should try other proposed treatments during reflection periods, he says: “On the

one hand, this would address the objection from some that assisted dying should not be available

to this population because there is always other treatment that we should try. On the other hand,

it violates the spirit of Carter and puts a burden on those living with mental illness that does not

apply to others. I also know that it is laughable to argue that no one should ever be able to seek

assisted dying on the basis of mental illness because there are endless treatment possibilities and

the patient should be required to try every one of them”.192

189

Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, Final Report (November 30, 2015), online: <http://www.health.gov.on.ca/en/news/bulletin/2015/docs/eagreport_20151214_en.pdf>. 190



Supra note 56 at 4.

41

It would indeed be unreasonable to expect a patient to try every single type of treatment available

before being eligible to request MAID. For this, Ruth von Fuchs provides a possible solution.

She suggests patients should only be accepted for MAID if they: (a) have undergone at least 5

years of treatment without adequate improvement, and/or (b) attempted at least 6 different types

of drugs/therapies without adequate improvement, and/or (c) have received a standard course of

treatment from at least 3 different medical professionals without adequate improvement.193

Noting, that adequate improvement would be a subjective decision of that the patient would

make.

Another quite creative suggestion made by Ruth von Fuchs to ensure mentally ill patients are

making decisions that reflect their own beliefs and values, and are not making a decision out of

desperation, she proposes the possibility of giving patients the option to undergo continuous deep

sedation, with technology to ensure they receive sufficient nutrition, for a week or however long

is safe enough for their bodies to sustain. These patients would be filmed on their thoughts and

feelings prior to and after their procedure. She suggests that some patients may either feel

relieved or disappointed which might be valuable in saving patients from making an irreversible

mistake.

Nevertheless, it is important to create laws that do not reduce vulnerable Canadians to a state of

being completely unprotected. To do so would be an injustice. End-of-life laws and policies on

this matter should be shaped in a manner that respect patient autonomy for those who are truly in

need of relief from deep suffering to prevent undermining the initial purpose of this treatment,

while at the same time provide others with robust protection and support. Before expanding

eligibility, the government should ensure vulnerable people are protected. These policies should

be informed by evidence emerging out of Europe and what top experts are cautioning against.

193

Supra note 64 at 1.

42

Final Remarks If the Canadian court establishes that Bill C-14 discriminates against Canadians based on their

diagnosis, contrary to section 15 of the Charter, then legislators may soon pass an extension of

the law. However, the concerns highlighted above demonstrate that we may be stepping into a

regulatory minefield. A request for assisted dying should not be fulfilled without caution because

many external factors may be driving a person to make such a decision. In other jurisdictions, as

we have read, laws and safeguards were put in place to prevent abuse, however in these same

countries patients are now being killed without expressing explicit consent and medical

professionals are increasingly failing to report such cases.

Tolerance of end-of-life practices in societies, as we have seen, may lead to a “slippery slope”

following legalization. Assisted dying in Canada is already being reviewed for a wider range of

patients. It may be inevitable that eligibility will extend beyond Parliaments initial intent. The

situation of the law as it currently stands, is unclear. Uproar against Bill C-14 began before it

received royal assent and only 10 days after it passed, BCCLA filed a lawsuit against the

Canadian government on behalf of a woman who is living with a disability. Also since its

approval, E.F., the 58-year-old Alberta woman mentioned earlier, was believed to have met all

the Supreme Court’s criteria for assisted death on the basis of a mental illness. So it may not be

long until the law is altered.

The current legislation does not appear to apply to people whose sole underlying condition for

suffering is a mental illness, especially because this does not meet the government’s requirement

for only accepting applicants once “natural death has become reasonably foreseeable”. Already,

requests are going beyond the requirements set by the government as the “reasonably

foreseeably” requirement has taken a back seat in courtroom deliberations. If the law were

changed to accommodate the interests of vulnerable groups, then so should their interest to be

protected from opting for MAID in a moment of weakness or by threat of external societal

pressure.

Though a legitimate concern of expanding criteria on the basis of equality should be how far the

protection from discrimination would go. Some day in the future, a claim could be brought

against the government for requiring additional safeguards for patients who have mental illnesses

43

or physical disabilities. A failure to consider the unique circumstances of these conditions may

possibly lead to an unsafe practice, one we currently see happening in Europe. For this reason,

additional safeguards should be required to prevent abuse from some more open-ended criteria,

as well as for other vulnerable groups who have not been mentioned in the scope of this paper.

Date post:	08-Aug-2020
Category:	Documents
Upload:	others
View:	0 times
Download:	0 times

The Future of Canada’s Medical Assistance in Dying (MAID ... · Supreme Court of Canada (SCC)...

Documents